Wednesday, 2 July 2014

Judgement in Vodacom Please Call Me case out

For those not
interested in my ramblings below and who are only looking for a copy of the
judgement, you can find it here.

As previously
reported by Profs Roshana Kelbrick and Caroline Ncube on this blog here and here,
former Vodacom employee Nkosana Makate sued Vodacom for remuneration in respect
of the Please
Call Me concept that he claimed to have conceived whilst in Vodacom's
employ.

Essentially,
Makate claimed that he had concluded an oral agreement with a director of
Vodacom, one Geissler, in terms of which Vodacom would test the concept and pay
Makate an amount to be negotiated, representing a share of the revenue
generated by the product developed on the back of the concept. Contrary
to some media reports, copyright or other intellectual property rights were not
at issue – Makate’s claim was founded in contract. Makate asked the court
to issue a declaratory order confirming the conclusion of the oral agreement
and directing that Vodacom enter into bona fide negotiations regarding
remuneration.

The High Court
in Johannesburg handed down judgement yesterday, dismissing Makate’s claims
with costs. I haven’t studied the judgement in detail but thought I’d
spare you the trouble of trudging through all 100 pages by giving you the gist
of it here.

Interestingly,
the Court accepted that Makate had concluded an agreement with Geissler.
Vodacom denied that Geissler had authority to bind it, but Makate argued that
Geissler had ostensible
authority, a form of esoppel in terms of which the party against whom the
estoppel is raised is prevented from denying that there was any actual authority
on the basis of representations made to the contrary. Essentially, the
Court found that Makate had failed to prove the requirements for the estoppel –
namely he failed to prove that Vodacom had made any representations as to
Geissler’s authority or, even if it had, that the representations were such
that Makate should reasonably have acted upon them. For good measure, the
Court found that Makate’s claims had prescribed too.

Litigation
funders Sterling-Rand, who funded Makate’s
claim, are apparently considering an appeal. According to a Business
Report piece,
Christiaan Schoeman, a consultant at Sterling-Rand, said this shortly after the
judgement:

“We will pay
until the last available resources have been exhausted because the evidence
provided by the plaintiff has been found to be true and accurate.”

Given that
they've sunk a reported R2.5 million in legal costs into the matter, one can
see why they might!

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